Like love, law seeks right match

September 16, 2007|By Geoffrey R. Stone

My daughter Mollie and her partner, Andrea, were married this summer.

It was, in many respects, a traditional wedding: performed by a minister at a beautiful venue, the Newberry Library, with touching and clever toasts, much singing, music and dancing and an abundance of laughter, tears and joy.

The only acknowledgment of governing law came from the minister, who, striking a perfect note of irony and levity, said, "By the power not quite yet vested in me by the State of Illinois ..."

The brides then kissed.

Since Mollie's engagement in November, I have had many conversations with friends, law colleagues, students and even strangers about the definition of marriage. I very much want to understand why some people so strongly oppose the marriage of two people who love each other and want to spend their lives together merely because they happen to be of the same sex.

Putting aside the narrowly religious arguments, which even many religious people recognize are an inappropriate basis for law in our nation, it comes down to this: Some people fear that our government's recognition of Mollie and Andrea's bond would undermine the integrity of marriage as an institution.

The answer, of course, is that marriage is between two people. To allow a man to marry his cat would be, well, absurd. It would make a mockery of marriage. The next thing you know, some woman will want to marry a tree.

Most of us would agree that our government should not give legal status to a man's "marriage" to his cat or a woman's "marriage" to a tree. Allowing such "marriages" would make the very idea of marriage ridiculous.

Some who oppose marriage between people of the same sex -- Mollie's marrying Andrea, for example -- see the concept as foolish and as unnatural (and therefore as threatening to the institution of marriage) as a man marrying his cat or a woman marrying a tree.

But this reasoning, both moral and logical, is flawed. As a law professor taught me many years ago, law (and we are talking here about law) involves choosing wisely among competing analogies.

After the Civil War, we declared that discrimination against African-Americans was wrong. But for a century thereafter, we thought discrimination against women was a completely different kettle of fish. Discrimination against women was "natural." It was more like discrimination against, say, young people.

It wasn't until the 1960s that we legally acknowledged, by including prohibitions against say, young people.

It wasn?t until the 1960s that we legally acknowledged, by including prohibitions against sexual discrimination in civil rights legislation, that bias against women is more like bias against African-Americans. We shifted the controlling analogy.

So is Mollie's marrying Andrea more like Mark's marrying Alice or John's marrying his cat? The very asking of this question might be taken as insulting (indeed, very insulting) to Mollie and Andrea. That is precisely the point.

Changing the controlling analogy entails risk. Recognizing that discrimination against women is "like" discrimination against African-Americans opens the door to new and sometimes disturbing questions. What about discrimination against the disabled? The elderly? Gays and lesbians?

Similarly, a decision to allow Mollie and Andrea to legally marry might raise unsettling questions about polygamy and Discrimination against women was "natural." It was more like discrimination against, say, young people. It wasn?t until the 1960s that we legally acknowledged, by including prohibitions against sexual discrimination in civil rights legislation, that bias against women is more like bias even about the cat and the tree. But such questions are inevitable and healthy in a robust, ever-questioning, ever-evolving society. They are a fundamental and cherished part of our American history and culture. If we did not ask such questions, we would still burn witches, buy slaves and deny women the vote.

In the end, we must rely on our deepest moral intuitions, our commitment to individual dignity, our belief that all persons "are created equal" and our common sense to draw the "right" lines for our generation.

Mollie and Andrea decided to marry not to gain the many legal benefits of marriage, which they are denied, and not to make a political statement, for they are not particularly political. That is what made their wedding so moving. Mollie and Andrea decided to marry for no reason other than love, their desire to commit themselves to each other and their wish to make that commitment in the presence of friends and loved ones. It was romantic, it was inspiring and it was perfectly right in every way.